Hazel Park man accused of molesting 8-year-old child

An 18-year-old Hazel Park man who was a special education student and struggles to write his name faces at least 25 years in prison if he is convicted of molesting an 8-year-old.

Duane Johnson’s admission to police that he sexually assaulted the boy in 2012 was upheld by circuit Judge Richard Caretti earlier this month even though psychologist Ronald Fenton testified that Johnson didn’t understand the concept of Miranda rights. Fenton also said, “It’s very possible he didn’t understand the concept of being in custody.”

Caretti agreed with Assistant Macomb Prosecutor Vicki Walsh that Johnson volunteered to two interviews with a Warren detective and a Secret Service polygraph examiner at the police station, and even if he didn’t believe he could leave, Johnson was read his Miranda rights that informed him he could have remained silent and sought legal advice.

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The judge rejected arguments by Johnson’s defense attorney Randy Rodnick that Johnson’s “mental challenges” prevented him from consenting to the interview, and that Warren’s Miranda rights form was deficient.

Rodnick also argued Johnson was affected by marijuana he smoked and alcohol he drank the day of the interview in June 2013.

After the ruling, Caretti set a May 29 pretrial in his courtroom in Macomb County Circuit Court in Mount Clemens.

Johnson is charged with first-degree criminal sexual conduct for the Ocotber 2012 at a Warren home he was visiting after he had resided there a short time.

He remains held in the county jail in lieu of a $200,000 bond, cash or surety.

The charge carries a mandatory minimum penalty of 25 years in prison because Johnson was over 17 and the victim was under 13.

Rodnick recently sought a second “deviation request” from Prosecutor Eric Smith to agree to a plea to third-degree criminal sexual conduct, punishable by up to 15 years in prison.

“Twenty-five years is pretty harsh under the circumstance of the case,” Rodnick said, noting many second-degree murder sentences carry a lesser penalty.

The case demonstrates the lack of consideration Michigan law has for mentally challenged adults who are deemed incompetent.

Johnson’s mother, Janice Beseler, said her son shouldn’t be facing the possibility of adult prison but instead needs help.

Rodnick agreed his client should get special consideration, saying Johnson is an example of someone who “fell through the cracks” of the social service system.

“No one is denying he is mentally challenged,” he said.

Two psychologists – one for the state and Fenton, commissioned by the defense -- found that Johnson met the two prongs of mental competency: he was aware at the time of the incident that his alleged actions were criminal and he can assist in his defense.

But Fenton also says Johnson has the mental capacity of a 12-year-old.

Rodnick cannot claim “diminished capacity” as a legal defense since that legal concept was stricken by the Michigan Supreme Court in 2001.

His only other option was an insanity defense, but that evaporated with the two evaluations finding him competent even though Fenton testified at the May 7 hearing that Johnson had difficulty writing his name. Johnson added in testimony that he crossed out his signature he wrote on a police document “because I have trouble spelling.”

Johnson acknowledged he wrote a letter to the district court judge who originally presided over his case but said his “bunkie,” cell mate at the Macomb County Jail in Mount Clemens, helped him pen it.

Under questioning by Walsh, Johnson said he felt “forced” by police to sign the Miranda form in which he waived his right to remain silent or talk to an attorney.

He added that he didn’t remember much of two interviews the same day in June 2013 but did recall drinking alcohol and smoking marijuana prior to them.

He denied with a simple, “no,” to Walsh’s assertion that he had selective memory to benefit his case.

Johnson, four years ago when he lived in Troy with his mother, attended the special education program at Sterling Heights High School but dropped out after ninth grade, according to Beseler. She said she couldn’t get him to return.

Warren Consolidated Schools officials did not return messages to confirm his attendance at the school.

Since then, he hasn’t been able to hold a job, she said. He smokes a “blunt,” or marijuana cigarette, every morning to help him wake up and drinks alcohol, she said.

She said her son cannot function on his own. He has the academic level of a second-grader, she added. He has a variety of mental ailments for which he is under medication. He is bi-polar and has attention deficit disorder and obsessive-compulsive disorder, among others, she said.

He left living with her and moved in with the Warren family where the alleged assaulted occurred after he had moved out, she said. He also has spent time “on the streets” but had returned home to live with her, she said.

The incident occurred about Oct. 1, 2012, less than five weeks after Johnson’s 17th birthday. If it occurred five weeks earlier, he could have been charged in juvenile court, where he could have been treated for three years before being released.

Criminal defense attorney Gail Pamukov-Miller, who is not connected to the case, said she was saddened to hear about Johnson’s case. Michigan law – beyond determining culpability and assistance to counsel -- doesn’t take into account defendants who have a low IQ.

A person can be convicted of “guilty but mentally ill,” but that doesn’t affect the sentence and requires some extra treatment in prison.

“It seems so patently unfair that for someone with his issues – in any case where there is age-related or cognitive issues -- to not get special considerations,” she said. “I’m not saying that what (allegedly) happened to the 8-year-old isn’t important, but the simple fact is the defendant’s age and cognitive ability should be considered.”

She noted that nationally the law already takes into consideration a person’s diminished mental capacity. The U.S. Supreme Court has declared that execution of a mentally impaired person is unconstitutional -- cruel and unusual punishment.

The high court two years ago addressed the issue, declaring that automatic life-in-prison terms were unconstitutional for defendants under age 18, also cruel and unusual punishment.

She said that perhaps if the case results in a conviction, Johnson will get the treatment “that can be fashioned” by the judge at his sentencing.

The state prison system offers programs for inmates who need special education and/or mental health treatment, according to Russ Marlan, spokesman for the Michigan Department of Corrections.

“We have special education and mental health treatment for all custody levels,” from minimum to maximum security, Marlan said.

Of the approximately 43,400 inmates, 17 percent of them are diagnosed with needing some level of mental health treatment, he said. Slightly more than half of them are considered “serious,” requiring psychotropic medication, Marlan said.

About 250 inmates currently are enrolled in special education, he said.